Atienza et al v. Wells Fargo et al

Filing 19

ORDER TO SHOW CAUSE Show Cause Response due by 11/10/2011.. Signed by Judge Edward M. Chen on 10/27/11. (bpf, COURT STAFF) (Filed on 10/27/2011)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

ALICIA G. ATIENZA, et al.,

9

No. C-11-3153 EMC

Plaintiffs,
ORDER TO SHOW CAUSE
v.

11
For the Northern District of California

United States District Court

10

WELLS FARGO, et al.,

12

Defendants.
___________________________________/

13
14
15

Plaintiffs filed a complaint in this action on June 24, 2011. Docket No. 1. All defendants

16

with the exception of U.S. Bancorp filed a motion to dismiss Plaintiffs’ complaint, which this Court

17

granted with prejudice on September 2, 2011. Docket Nos. 14, 15 (Amended Order issued October

18

14, 2011). Thus, U.S. Bancorp is the only defendant remaining in this action.

19

Pursuant to Rule 4(l) of the Federal Rules of Civil Procedure, Plaintiffs are required to prove

20

service of Defendant U.S. Bancorp to the Court. “Except for service by a United States marshal or

21

deputy marshal, proof must be by the server's affidavit.” Fed. R. Civ. P. 4(l)(1). Furthermore, Rule

22

4(m) provides, in relevant part,

23
24
25
26
27
28

If a defendant is not served within 120 days after the complaint is filed, the court--on
motion or on its own after notice to the plaintiff--must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must extend the time
for service for an appropriate period.

1

Since Plaintiffs filed their complaint on June 24, 2011, they were required to serve Defendant U.S.

2

Bancorp, and give proof of service to the Court, no later than October 24, 2011.1

3

Accordingly, the Court hereby issues this Order to Show Cause why this case should not be

4

dismissed without prejudice against U.S. Bancorp. Plaintiffs are instructed to file a response to this

5

Court no later than November 10, 2011, which includes either a proof of service to Defendant U.S.

6

Bancorp or an explanation as to why there is good cause for their failure to serve Defendant. Absent

7

proof of service or good cause, the Court will dismiss the action.

8
9

IT IS SO ORDERED.

11
For the Northern District of California

United States District Court

10
Dated: October 27, 2011

12

_________________________
EDWARD M. CHEN
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
1

28

While October 22, 2011, is 120 days after June 24, 2011, since October 22 fell on a
Saturday, the deadline extends to the next business day. See Fed. R. Civ. P. 6(a)(1)©.

2

1

UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

2
3
ALIZIA G ATIENZA et al,
4

Case Number: CV11-03153 EMC
Plaintiff,

5

CERTIFICATE OF SERVICE
v.

6
WELLS FARGO et al,
7
Defendant.
8
9

11
For the Northern District of California

United States District Court

10

12

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 27, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

13
14
15
16
17
18

Alicia G.
136 Saint Francis Boulevard
San Francisco, CA 94127
Clodualdo A.
136 Saint Francis Boulevard
San Francisco, CA 94127

19
20
21

Dated: October 27, 2011
Richard W. Wieking, Clerk
By: Betty Lee, Deputy Clerk

22
23
24
25
26
27
28

3